HomeMy WebLinkAboutC2009-535 - 12/8/2009 - Approved2009-535
Ord. 028426
12/08/09
Landry's Seafood & Steak House
LEASE AGREEMENT
BETWEEN
LANDRY'S SEAFOOD AND STEAK HOUSE -CORPUS CHRISTI, INC.
AND THE
CITY OF CORPUS CHRISTI
THE STATE OF TEXAS §
COUNTY OF NUECES §
KNOW ALL MEN BY THESE PRESENTS:
This lease ("Lease") is entered into between the City of Corpus Christi ("City"), a Texas
municipal home-rule corporation, acting through its duly authorized City Manager ("City
Manager"), and Landry's Seafood & Steak House-Corpus Christi, Inc., a Texas
corporation ("Lessee");
The City, in consideration of Lessee's faithful performance of the conditions and
covenants contained in this Lease, leases to Lessee a dockside area in the Corpus
Christi Marina ("Marina"), as follows:
Section 1. Preamble Language. The preamble language included above this initial
numerated section in incorporated into this Lease by reference and made a part of this
Lease for all intents and purposes.
Section 2. Premises. Lessee is granted use of sufficient berthing space on the north
side of the Peoples Street T-Head, to accommodate a barge restaurant to be
permanently moored pursuant to US Coast Guard rules and regulations, and related
site improvements, including the additional adjacent space designated "Boardwalk" on
the attached Exhibit A (all areas collectively referred to as the "Premises"), which is
incorporated in this Lease by reference, and is set forth in Landry's proposal in
response to RFP BI 0132-09 and in compliance with applicable City of Corpus Christi
codes and ordinances.
Section 3. Permitted Uses.
(A) Lessee must use the Premises primarily as a restaurant, to include outside
dining, and secondarily as a bar.
(B) Lessee may use the bar,. as a secondary use only, to sell and serve alcoholic
beverages if Lessee has complied, and remains in compliance, with all State and
local laws, rules, regulations, and ordinances. Additionally, the bar may be used
by Lessee for the sale of souvenirs and other merchandise secondary to and as
appropriate to complement food and drink service.
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(C) The business operation must be confined to the barge restaurant, Boardwalk,
and deck areas within the Premises.
(D) This Lease is not an exclusive right to operate a restaurant in the Marina area.
Section 4. Term. The term of this Lease shall begin on January 1, 2010 and be for
five (5) years, unless terminated earlier as provided herein. Thereafter, the Agreement
shall become month-to-month until a new lease has been re-negotiated.
Section 5. Lease Rate and Payments.
(A) From January 1, 2010 through December 31, 2011, the Lessee shall pay the City
abase lease rate of $6,000.00 per month or 2.75% of monthly "Gross Sales",
whichever is greater (the "Lease Payment"); and then
(B) From January 1, 2012 through December 31, 2013, the Lessee shall pay the
City a base lease rate of $6,300.00 per month or 2.75% of monthly "Gross
Sales", whichever is greater (the "Lease Payment"); and then
(C) From January 1, 2014 through December 31, 2014, the Lessee shall pay the
City a base lease rate of $6,657.00 per month or 2.75% of monthly "Gross
Sales", whichever is greater (the "Lease Payment").
(D) "Gross Sales" means all sales of food, drink, souvenir items, and all
merchandise of any kind, prepared, produced or sold on the Premises or sold on
the Peoples Street T-Head, excluding credit card transaction fees and sales,
consumption and alcoholic beverage taxes.
(E) Payments must be made to the order of the City of Corpus Christi and mailed to
the City Collections Department, P. O. Box 9277, Corpus Christi, TX, 78469, or
delivered to City Hall at 1201 Leopard Street, Corpus Christi, TX, 78401.
Section 6. Lease Payment Abatement.
(A) The monthly Lease Payment shall be abated during the time Lessee ceases
restaurant business operations as set forth hereinafter:
(1) in preparation for closure due to the implementation by a legally
authorized official of the City of Corpus Christi or Nueces County of a declaration
that requires the cessation of all normal operations of the restaurant in
accordance with Lessee Hurricane Preparedness Plan ("Hurricane Plan"), a
copy of which is attached as Exhibit C and incorporated in this Lease by
reference, or any other condition declared by a legally authorized official of the
City of Corpus Christi or Nueces County that requires the cessation of all normal
operations of the restaurant;
(2) whenever the barge is rendered substantially unusable because of
damage resulting from fire, water, wind, or force majeure; or
(3) in the event major repair, renovation, or construction prohibits access to
and through the Peoples Street T-Head.
(B) In the event that a condition in subsection (A) of this section occurs and Lessee
desires to claim a Lease Payment abatement, Lessee must notify the City's
Marina Superintendent, City Manager or the Marina Superintendent's designee
("Marina Superintendent") in writing within three (3) business days following the
occurrence of a condition stated in subsection (A) of this section or as soon as
practical under the circumstances, providing the date, time, and reason for
cessation of restaurant business operations and the expected date of resumption
of restaurant business operations.
(C) Lessee must resume its restaurant business operations as soon as practical after
a condition that caused the cessation of restaurant business operations no longer
exists. Lessee must provide the Marina Superintendent with written notice within
24 hours after resuming restaurant business operations.
(D) The Lease Payment abatement amount will be a pro rata share of the minimum
monthly Lease Payment due for each day of cessation of business as provided
herein.
Section 7. Monthly Financial Statements; Audit of Records.
(A) Lessee must keep strict and accurate books of account and records of Gross
Sales and of all receipts collected.
(B) Lessee must furnish monthly statements of Gross Sales, certified by an
authorized officer of Lessee, in accordance with generally accepted accounting
principles and procedures and in a form approved by the City's Director of
Finance.
(C) Lessee's books and records must be open for inspection by the City Manager at
all reasonable times.
(D) All underlying documentation for Lessee's certified monthly statements,
including, but not limited to, cash register and computer terminal tapes, must be
preserved by Lessee for at least three (3) years. The City Manager may
terminate this Lease for failure to preserve such records or provide them to the
City upon the City Manager's request.
(E) The City Manager may audit Lessee's books and records at any time to verify
Gross Sales for any period within three (3) years prior to an audit.
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(1) "Books and records" includes, but is not limited to, all documents related
to the conduct of the business such as: general ledgers, accounts receivables
and payables, sales journals, inventory records, daily and periodic summary
re-ports, cash register and computer terminal tapes, bank deposit slips, bank
statements, tax reports to State and Federal agencies, and discount and rebate
records.
(2) Any additional payments due the City, as may be determined by an audit,
must be paid by Lessee to the City, with annual interest of 10% from the date the
payment became due, within 30 days of such determination and notice to
Lessee.
(3) Audits will be conducted at the administrative offices of the City's Park &
Recreation Department, 1201 Leopard Street, Corpus Christi, Nueces County,
Texas, 78401, and Lessee must make its books and records available at such
time as required by the City's Auditor. If first agreed to in writing by the City's
Marina Superintendent, the audit can be conducted at another site, provided
Lessee's reimburses the City for the travel, food, and lodging expenses of City
staff necessary to conduct the audit.
(4) If the audit shows that Lessee has understated Gross Receipts by 3% or
more, the entire expense of the audit must be paid by Lessee's.
Section 8. Delinquency and Default Regarding Lease Payments.
(A) Lessee is "delinquent" if the City has not received Lessee's monthly Lease
Payment and certified financial statement on or before 5:00 p.m. on the 10th day
of the month in which the payment and certified financial statement are due. If
the 10th day on the month falls on a weekend or holiday, the Lease Payment and
certified financial statement must be tendered on the first business day
thereafter.
(B) Lessee is "in default" if Lessee fails to pay the amount due or provide the
certified financial statement within ten (10) business days after the City Manager
has sent a written notice of delinquency requesting the payment, certified
financial statement, or both. A default for failure to pay the amount due or
provide the certified financial statement constitutes grounds to terminate this
Lease.
Section 9. Lessee Responsibilities. Lessee, shall:
(A) Pay for the installation, maintenance, and use of all of its utilities including, but
not limited to, water, sewer, sanitation, electricity, natural gas, and telephone;
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(B) Comply with all Federal, State, and local laws, rules, regulations, and ordinances,
as each may be amended, including, but not limited to, Chapter 12 of the City's
Code of Ordinances and the Marina Rules and Regulations, and ensure that its
employees, agents, and representatives comply as well;
(C) Perform the alterations, repairs and improvements to the barge restaurant by the
completion dates set forth on Exhibit F herein subject to any delays approved by
the Marina Superintendent;
(D) Maintain the Premises and all improvements in a good and safe condition during
the Lease term;
(E) Maintain the barge restaurant, mooring lines, spuds, pilings, and anchors at all
times in a satisfactory state of repair, as specified by the Marina Superintendent;
(F) Perform grounds maintenance for the area north of the center of the head portion
of the Peoples Street T-Head, as shown on the attached Exhibit B, which is
incorporated in this Lease by reference, to include, without limitation, litter control
of all grass and landscaped areas and the parking lots utilized by its restaurant
customers, except for such times as the City leases such property to other third
parties;
(G) Raise the barge restaurant if it sinks, regardless of the cause of its sinking;
(H) Remove the barge restaurant from the Marina in the event of extensive damage,
destruction, sinking, or partial sinking, regardless of cause;
(I) Ensure that no pollutant, effluent, liquid or solid waste material, bilge water, litter,
trash, or garbage issued from the Premises is allowed to collect in the waters of
the Marina or in the vicinity of the barge restaurant or parking areas utilized by
restaurant customers. Lessee must regularly inspect and police the vicinity of
the Premises for such materials and promptly clean up and remove such
materials in order to maintain the cleanliness and. attractiveness of the Marina;
(J) Ensure that the noise level issuing from the Premises is reasonable and not
discernibly audible to a person of normal hearing sensitivity standing along the
east curb lines of Shoreline Boulevard (northbound);
(K) Regularly inspect and maintain fire fighting systems and equipment in the highest
degree of readiness and regularly conduct training for employees in fire
prevention and emergency procedures;
(L) Pay all operating expenses incurred by Lessee in connection with its restaurant
business operations;
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(M) Pay all ad valorem taxes which may be assessed against the Premises, that are
associated with Lessee use of the Premises, prior to their past due date;
(N) Properly maintain and clean the grease traps, trash dumpsters, trash dumpster
area and vessel bilges, in accordance with applicable local ordinances and State
health regulations, at least once every month or more frequently as needed; and
(O) Remove the barge restaurant from the Marina at termination or expiration of the
lease.
Section 10. Repairs and Maintenance to Barge.
(A) Lessee must obtain all required permits from the City prior to commencing
repairs.
(B) For all repairs, Lessee must provide the Marina Superintendent with a written
description of the type of maintenance requested and the estimated time frame to
start and complete the maintenance requested, at least one week prior to the
requested start date.
(C) Lessee agrees to provide Marina Superintendent with copy of records regarding
maintenance (including regular maintenance) for the barge within one week of
maintenance.
(D) Lessee may not make any major repairs or perform any major maintenance to
the Barge during such times that a City approved special event is open to the
public on the Peoples Street T-Head.
Section 11. Improvements/Additions/Alterations.
(A) Lessee may not make any improvements, additions, or alterations to the
Premises, the Marina facilities, the exterior of the barge restaurant, or the
Boardwalk without the prior written approval of the Marina Superintendent and
the City Manager after the completion of the items as set forth in Exhibit F.
Lessee must also obtain clearance, in writing, from the City's Risk Manager as
required by this Lease.
(B) If approved, any improvements, additions, or alterations made by Lessee to the
Premises must comply with all applicable City Codes.
(C) Lessee acknowledges and agrees that all improvements, additions, and
alterations that may be made to the Premises, including the Boardwalk area,
during the term of this Lease become the property of the City upon the earlier
termination or expiration of this Lease. Notwithstanding anything contained
herein to the contrary, the barge restaurant shall remain the property of the
Lessee.
(D) Location of proposed pilings is subject to prior approval of City Manager or
designee.Pilings must be completed by May 31, 2010.
(E) Lessee shall utilize barge restaurant for its restaurant at the Premises.
(F) Prior to any construction, Lessee shall contact City Risk Manager to obtain
updated insurance requirements for the construction. Lessee must provide evidence
of all required insurance prior to construction.Lessee shall complete all
improvements identified in their proposal dated March 12, 2009 in response to RFP
BI-0132-09. Pilings must be completed by May 31, 2010. All other improvements in
proposal must be completed by December 31, 2010.
Section 12. Restaurant Operations. Lessee shall carry out the restaurant operations
in a businesslike manner at all times. The hours and days of operation during the term
of this Lease must be comparable to those of other restaurants in the City that place
emphasis upon lunch and evening meals.
Section 13. Hurricane Preparedness. If the City or the surrounding area is
threatened by a hurricane or other emergency weather situation, Lessee shall comply
with all orders of the Marina Superintendent pursuant to the Hurricane Preparedness
Plan, as set out in Exhibit C.
Additionally, Lessee agrees to replace any mooring lines connected to the barge
restaurant when necessary but in no event more than every two years during the term
of this agreement.
Section 14. Sanitation. Lessee shall store garbage and trash aboard the barge
restaurant or upon the Peoples Street T-Head at a location designated by the Marina
Superintendent. All garbage and trash stored in designated areas upon the T-Head
must be stored in dumpster-type containers. Such containers must be housed inside a
small building, screened or appropriately landscaped, and all at Lessee's expense and
as approved by the Marina Superintendent. The garbage container area must be
maintained by Lessee. Lessee shall obtain garbage pickup no less than five (5) days
per week. Lessee may not store anything outside either the dumpster itself or the
dumpster housing. Lessee will construct concrete pad in the operational area apron of
the dumpster to reduce damaged to asphalt caused by dumpster service vehicles.
Lessee shall relocate its dumpster at Marina Superintendent's direction. During days of
special events approved by City which occur at the Peoples Street T-Head, Lessee may
be required to alter its daily dumpster pickup, including weekends at the sole discretion
of the Marina Superintendent and at Lessee's sole cost.
Section 15. Parking. Lessee restaurant customers may park on the stem and head
portion of the Peoples Street T-Head, provided, however, that such parking areas may
not be utilized by Lessee for the exclusive use of Lessee and its employees and
customers. Parking on the Peoples Street T-Head is subject to the City street closure
process. For example, during City-approved street closure or special events of Peoples
Street T-Head, Lessee (and its employees and customers) may not have access to use
of parking areas on the Peoples Street T-Head.
Section 15.1 Special Events.
(A) Lessee acknowledges that City may authorize special events on the Peoples
Street T-Head, such as the Texas International Yacht Show, which may impact
vehicular access to the Premises.
(B) During days of City-approved special events at Peoples Street T-Head which
include street closures on Peoples Street T-Head, vehicular access to Lessee's
premises will be restricted to deliveries made at least one hour prior to opening of
special event for the day and deliveries made after the special event has closed
for the day.
(C) Lessee's customers and Lessee's staff access to the Premises during any days
of special events approved by the City may be further restricted as follows:
(1) Access to Premises when special event is opened to the public:
(a) Lessee's customers may be required to pay the price of an admission
ticket in order to enter the People's Street T-Head to access the
Premises during such special event(s) as approved by the City that
allow for the charge of admission for entry to the Peoples Street T-
Head.
(D) Access to Premises when special event is closed to the public and during special
event setup and takedown.
(1) During times when a special event is closed to public, and during special
event setup and takedown times, Lessee's customers and staff will have access
to the Premises only via golf cart shuttle service paid for by Lessee, and only
under such terms and conditions approved by the City Manager. Such terms and
conditions may include but are not limited to the following:
(a) Lessee must indemnify City, the special event organizer and its
sponsors for Lessee's operation of shuttle service in accordance with
the indemnity provision below.
(b) Lessee must obtain the attached insurance for the shuttle service.
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(c) Lessee shall pay for off duty Corpus Christi police officers to stand
guard at restaurant and at each entrance into People's Street T-Head
to ensure that Lessee's customers and staff travel via shuttle directly
between restaurant and entrances. The off-duty Corpus Christi police
officers shall coordinate with the special event security staff.
(d) Lessee's customers shall not be allowed to walk through special event
site unless the special event is open to public and customer has paid
admission ticket.
(e) Lessee's staff shall not be allowed to walk through special event site
unless the special event is open to public and staff is reporting to work.
(f) Marina Superintendent and special event sponsor shall establish hours
for operation of golf cart shuttle.
(g) Lessee may not operate golf cart shuttle service during times that the
special event is opened to the public.
(E) Lessee agrees to indemnify and hold harmless the City of the Corpus
Christi, any special event organizer and their sponsors, their officers,
agents, representatives, and employees (collectively "Indemnitees") for the
operations of shuttle service by Lessee at People's Street T-head. Landry's
covenants to fully indemnify, save, and hold harmless the Indemnitees
from and against any and all claims, demands, actions, damages, losses,
costs, liabilities, expenses, and judgments asserted against from any of
the Indemnitees on account of injury or damage to persons or property
(including, without limitation on the foregoing, premises defects, workers'
compensation, and death claims), to the extent any injury, damage, or loss
maybe incident to, arise out of, or be caused by Lessee's operation of a
shuttle service so long as reasonable notice is given Lessee to allow it the
opportunity to defend any such claim. Notwithstanding anythin_g contained
herein to the contrary, Lessee shall not indemnify and hold harmless any
one or more of the Indemnitees to the extent that any injury, damage or
loss is caused by the negligent acts, omissions or willful misconduct of
any one of them. Lessee covenants and agrees that, if any of the
Indemnitees are made a party to any litigation commenced by any party
relating to operation of shuttle service, Lessee shall, upon receipt of
reasonable notice regarding commencement of litigation and at its own
expense, investigate all claims and demands, attend to their settlement or
other disposition, defend the Indemnitees in all actions based thereon with
legal counsel satisfactory to the Indemnitees, and pay all charges of
attorneys and all other costs and expenses of any kind whatsoever arisin_g
from any said claims, demands, actions, damages, losses, costs, liabilities,
expenses, or lud_gments.
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(F) Lessee agrees to provide City Marina Superintendent with evidence of insurance
before operation of golf cart shuttle service. Required insurance is attached as
separate Exhibit E.
(G) Lessee must ensure that its shuttle service will be operated in safe manner by
responsible drivers at all times. If shuttle service is operated in unsafe manner,
then Lessee's authority for shuttle service operation is subject to immediate
termination by the City of Corpus Christi Marina Superintendent without further
notice.
(H) Lessor reimbursement for special event(s).
When there is a multi-day special event approved by the City which includes
street closures of the Peoples Street T-Head which prohibit vehicular access to
the Premises, Lessee shall receive a credit of 50% of the monthly Lease
Payment due for the month in which the special event commences. The credit is
capped at 50% of one month's Lease Payment due for the month in which the
special event commenced.
Section 16. Sanitary Sewer.
(A) Lessee shall operate its sanitary sewer facilities in accordance with the City Code
of Ordinances, Section 13-201, as amended, and City Code of Ordinances,
Chapter 55, Article XI, Commercial and Industrial Waste Disposal and
Pretreatment, as amended.
(B) The City warrants sewer service from the lift station only so long as electrical
service to the station is not disrupted by storm, accident or other hazards, or
catastrophe. Standby power to operate the lift station is not available at the
beginning of this Lease nor is it planned by the City.
Section 17. Inspection. Any officer or authorized employee of the City may enter
upon the Premises, including the barge restaurant, at all reasonable times and without
notice, to determine whether Lessee is providing maintenance required by this Lease, to
inspect the restaurant operations, to enforce this Lease, for purposes of any fire or
police action, or for any other purpose incidental to the City's retained rights of and in
the Premises.
Section 18. Signs and Lighting.
(A) Lessee may not exhibit, inscribe, paint, erect, or affix any signs, advertisements,
notices, or other lettering ("Signs") at, on, or about the Premises, or any part
thereof, without the prior written approval of the City Manager.
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(B) The City may require Lessee to replace, repaint, or repair any Signs allowed. If
Lessee does not remove, repaint, or repair the Signs within 15 business days of
the Marina Superintendent's written demand, the City may do or cause the work
to be done, and Lessee shall pay the City's costs within 30 days of receipt of
Marina Superintendent's invoice. Failure to pay the amount due within 30 days
from receipt of an invoice constitutes grounds to terminate this Lease.
(C) Lessee may not erect or affix any new or modified lighting fixtures ("Lighting")
at, on, or about the Premises, or any part thereof, without the prior written
approval of the City Manager.
(D) If approved, the new or altered Signs and Lighting must comply with the City's
Code of Ordinances and the City's zoning ordinance, as each may be amended.
Section 19. Assignment or Sublease.
(A) Lessee may not, without the prior written consent of the City's City Council ("City
Council"), such consent not to be unreasonably withheld, assign this Lease or
sub- lease any portion of the Premises. Any attempted assignment or sublease,
without the prior written consent of the City Council may, in the City Manager's
sole discretion, render this Lease null and void.
(B) In the event of the City Council's consent to an assignment or sublease of this
Lease, each provision, term, covenant, obligation, and condition required to be
performed by Lessee must be binding upon any assignee or sublessee and is
partial consideration for the City Council's consent to the assignment or
sublease. Any failure of the assignee or sublessee to strictly comply with each
provision, term, covenant, obligation, and condition stated in this Lease may, in
the City's Manager's sole discretion, render this Lease null and void.
Section 20. Non-discrimination. Lessee covenants and agrees that it shall not
discriminate nor permit discrimination against any person or group of persons, with
regard to employment and the provision of services at, on, or in the Premises, on the
grounds of race, religion, national origin, gender, age, disability, or in any manner
prohibited by the laws of the United States or the State of Texas. The City hereby
reserves the right to take such action as the United States may direct to enforce this
covenant. Violation by Lessee of this covenant constitutes grounds for the City to
immediately terminate this Lease.
Section 21. Relationship of Parties. This Lease establishes alandlord/tenant
relationship, and none other, and this Lease must be construed conclusively in favor of
that relationship. In performing this Lease, both the City and Lessee will act in an
individual capacity and not as agents, representatives, employees, employers, partners,
joint venturers, or associates of one another. The employees or agents of either party
may not be, nor be construed to be, the employees or agents of the other party for any
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purpose whatsoever. Lessee shall employ sufficient employees to operate the
restaurant business and such employees must be solely in the employ of Lessee.
Section 22. Termination and Damages Prior To Expiration. If Lessee causes
termination of this Lease prior to expiration, Lessee must pay the City, within 30 days of
termination, liquidated damages in the amount of $34,500 to offset income the City will
lose due to early termination of this Lease. The liquidated damages paid by Lessee will
provide revenue to the City while the City attempts to find a new restaurant operator or
other revenue source.
Section 23. Termination upon Default. The City may terminate this Lease if Lessee
fails to comply with any provision, term, covenant, obligation, or condition of this Lease
and fails or refuses to cure the default within a reasonable time after receiving written
notice of the default. Notwithstanding the immediately preceding language, default of
Section 20 of this Lease will subject this Lease to immediate termination.
Section 24. Removal of Barge and Pilings.
Lessee must remove the barge restaurant and the pilings from the Marina no later than
day of termination or expiration of this Lease, at Lessee cost and without damage to
City property. No extensions will be permitted.
Section 25. Indemnification.
(A) To the extent allowed by Texas law and in consideration of
allowing Lessee to lease the Premises, Lessee ("Indemnitor")
covenants to fully indemnify, save, and hold harmless the City,
its officers, agents, representatives, and employees (collectively,
"Indemnitees") from and against any and all claims, demands,
actions, damages, losses, costs, liabilities, expenses, and
judgments asserted against the City on account of injury or
damage to persons or property (including, without limitation on
the foregoing, premises defects, workers' compensation, and
death claims), to the extent any injury, damage, or loss maybe
incident to, arise out of, be caused by, or be in any way
connected with, either proximately or remotely, wholly or in part:
(1) Lessees' performance pursuant to this Lease; (2) Lessees'
use of the Premises and any and all activities associated with
the Premises; (3) the violation by Lessee, its officers,
employees, agents, or representatives or by Indemnitees of any
law, rule, regulation, ordinance, or government order of any
kind pertaining directly or indirectly to this Lease; (4) the
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exercise of rights under this Lease; or (5) an act, omission, or
criminal violation on the part of Lessee 's, its officers,
employees, agents, representatives, contractors, patrons,
guests, licensees, or invitees entering upon the Premises or
Boardwalk area with or without the express or implied invitation
of Lessee, or of Indemnitees, pertaining to this Lease,
regardless of whether the injury, damage, loss, violation,
exercise of rights, act, omission, or criminal violation is caused
or is claimed to be caused by the sole, contributing, or
concurrent negligence of Indemnitees, but not if such damage or
injury results from the gross negligence or willful misconduct of
the Indemnitees, so long as reasonable notice is given to Lessee
to allow it the opportunity to defend any such claim.
(B) Lessee covenants and agrees that, if the City is made a party to
any litigation against Lessee or in any litigation commenced by
any party, other than Lessee relating to this Lease, Lessee shall,
upon receipt of reasonable notice regarding commencement of
litigation and at its own expense, investigate all claims and
demands, attend to their settlement or other disposition, defend
the City in all actions based thereon with legal counsel
satisfactory to the City Attorney, and pay all charges of
attorneys and all other costs and expenses of any kind
whatsoever arising from any said claims, demands, actions,
damages, losses, costs, liabilities, expenses, or judgments.
(C) The provisions of this section survive the earlier termination or
expiration of this Lease.
Section 26. Insurance.
(A) Lessee must provide insurance in the amounts and types of coverages required
by the City's Risk Manager or the Risk Manager's designee ("Risk Manager") as
delineated in Exhibit D, which is attached to this Lease and incorporated in this
Lease by reference. Lessee must provide the City's Marina Superintendent and
the Risk Manager with a Certificate of Insurance, stating the levels and types of
coverages, at least 30 days prior to the annual anniversary date of the effective
date of this Lease.
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(B) The language on the Certificate of Insurance must provide that the City's Marina
Superintendent and the Risk Manager receive at least 30 days advance written
notice, by certified mail, of any cancellation, non-renewal, or material change in
the insurance policy required in Exhibit D.
(C) The Risk Manager retains the right to annually review the limits and types of
insurance required by this Lease, to require increased coverage limits and types,
if necessary in the interest of public health, safety, or welfare, or to adequately
insure the Premises, and to decrease coverage, if so warranted. In the event of
any necessary increase, Lessee will receive at least 30 days written notice of the
revised re-insurance requirements. Lessee shall procure the revised insurance
limits and types within 30 days of receipt of written notice of the revised
insurance requirements and provide written proof of insurance to the City's
Marina Superintendent and the Risk Manager.
(D) Lessee shall, prior to the construction of any improvement, addition, or alteration
to, in, on, or about the Premises, obtain prior clearance, in writing, from the Risk
Manager that the proposed improvement, addition, or alteration will not
necessitate a change or modification in the existing insurance coverage
maintained by Lessee. This clearance is in addition to the prior consent required
by Section 11(A) of this Lease. In the event that the Risk Manager determines
that the improvement, addition, or alteration necessitates increased insurance
coverage, Lessee shall procure such increased insurance coverage within the
time specified by the Risk Manager.
Section 27. Taxes.
(A) Lessee shall pay all taxes, license and permit fees, and other fees required to
operate the Premises. Lessee shall also pay all taxes that Lessee use of the
Premises causes to be assessed against the Premises, and any Fixed Asset and
Personal Property taxes appurtenant to the Premises. Lessee shall pay all taxes
prior to the due date.
(B) Further, Lessee covenants to pay payroll taxes, Medicare taxes, FICA taxes,
unemployment taxes, and all other related taxes according to the United States
Internal Revenue Service's Circular E, entitled "Employer Tax Guide", Publication
15, as it may be amended, prior to their respective due dates. Lessee shall
provide proof of payment of these taxes within 30 days after payment is due or
the Marina Superintendent requests proof of payment. Failure to pay or provide
proof of payment is grounds to terminate this Lease.
Section 28. Notice.
(A) All notices, demands, requests, or replies provided for or permitted by this Lease
must be in writing and may be delivered by any one of the following methods: (1)
15
by personal delivery; (2) by deposit with the United States Postal Service as
certified mail, return receipt requested, postage prepaid, to the addresses stated
below; (3) by prepaid telegram; (4) by deposit with an overnight express delivery
service; or (5) by fax transmission.
(B) Notice deposited with the United States Postal Service in the manner described
above will be deemed effective two (2) business days after deposit with the
United States Postal Service. Notice by telegram or overnight express delivery
service will be deemed effective one (1) business day after transmission to the
telegraph company or overnight express carrier. Notice by fax transmission will
be deemed effective upon transmission with proof of delivery.
(C) All such communications must be made only to the following:
IF TO THE CITY:
City of Corpus Christi
Attn: Marina Superintendent
P.O. Box 9277
Corpus Christi, TX 78469-9277
(361) 826-3983 Office
(361) 883-4778 Fax
IF TO LESSEE:
Landry's Seafood & Steak
House-Corpus Christi, Inc.
Attn: Steven L. Scheinthal
1510 West Loop South
Houston, Texas 77027
Ph: (713) 850-1010
fax: (713) 386-7070
(D) Either party may change the address to which notice is sent by using a method
set out above. Lessee shall notify the City of an address change or fax number
change within ten (10) days after the addressor number is changed.
Section 29. No debts. Lessee shall not incur any debts or obligations on the credit of
the City during the term of this Lease and including during any Holdover Period that
may occur.
Section 30. Modifications. This Lease may be modified by the parties if the parties
enter into a separate development agreement for the City's Marina area during the term
of this Lease. No other changes or modifications to this Lease may be made nor any
provision waived unless made in writing and signed by persons duly authorized to sign
agreements on behalf of each party.
Section 31. Interpretation; Venue. This Lease is to be interpreted according to the
Texas laws which govern the interpretation of contracts. Venue lies in Nueces County,
Texas, where this Lease was entered into and will be performed.
Section 32. Captions. The headings contained in this Lease are for convenience and
reference only and are not intended to define or limit the scope of any provision.
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Section 33. Publication. Lessee agrees to pay the cost of newspaper publication of
this Lease and related ordinance, as required by the City Charter, in the legal section of
the local newspaper.
Section 34. Waiver.
(A) The failure of either party to complain of any act or omission on the part of the
other party, no matter how long the same may continue, will not be deemed a
waiver by said party of any of its rights under this Lease. The waiver of any
covenant or condition or of the breach of any covenant or condition of this Lease
by either party at any time, express or implied, may not be taken to constitute a
waiver of any subsequent breach of the covenant or condition nor justify or
authorize the nonobservance on any other occasion of the same or any other
covenant or condition of this Lease. If any action by Lessee requires the consent
or approval of the City on one occasion, any consent or approval given on said
occasion shall not be deemed a consent or approval of the same or any other
action at any other occasion.
(B) Any waiver or indulgence of Lessee default of any provision of this Lease shall
not be considered an estoppel against the City. It is expressly understood that, if
at any time Lessee 's is in default in any of its conditions or covenants of this
Lease, the failure on the part of the City to promptly avail itself of said rights and
remedies which the City may have shall not be considered a waiver on the part of
the City, but the City may at any time avail itself of said rights or remedies or
elect to terminate this Lease on account of said default. Any waiver by the
parties of a breach of any covenants, terms, obligations, or events of default shall
not be construed to be a waiver of any subsequent breach nor shall the failure to
require full compliance with this Lease be construed as changing the terms of
this Lease or estopping the parties from enforcing the terms of this Lease.
Section 35. Force Majeure. No party to this Lease is liable for delays or failures in
performance due to any cause beyond their control including, without limitation, any
delays or failures in performance caused by strikes, lock outs, fires, acts of God or the
public enemy, common carrier, severe inclement weather, or riots or interference by civil
or military authorities. Such delays or failures to perform extend the period of
performance until these exigencies have been removed. Lessee shall inform the City in
writing of proof of such force majeure within three (3) business days or otherwise waive
this right as a defense.
Section 36. Surrender. Lessee acknowledges and understands that the City's
agreement to lease the Premises to Lessee is expressly conditioned on the
understanding that the Premises, including, but not limited to, the Boardwalk area, must
be surrendered upon the expiration, termination, or cancellation of this Lease in as good
a condition as received, reasonable use and wear, acts of God, fire and flood damage
or destruction where Lessee is without fault, excepted.
17
Section 37. Enforcement Costs. In the event any legal action or proceeding is
undertaken by the City to repossess the Premises, collect the rent payment(s) due
pursuant to this Lease, collect for any damages to the Premises, or to, in any other way,
enforce the provisions of this Lease, Lessee agrees to pay all court costs and expenses
and such sum as a court of competent jurisdiction may adjudge reasonable as
attorneys' fees in said action or proceeding or, in the event of an appeal, as allowed by
an appellate court, if a judgment is rendered in favor of the City.
Section 38. Survival of Terms. Termination or expiration of this Lease for any reason
does not release either party from any liabilities or obligations set forth in this Lease that
(1) the parties have expressly agreed survive any such termination or expiration,
including, but not limited to, Section 25; (b) remain to be performed; or (c) by their
nature would be intended to be applicable following any such termination or expiration.
Section 39. Acknowledgment and Construction of Ambiguities. The parties
expressly acknowledge that they have each independently read and understood this
Lease. By Lessee execution of this Lease, Lessee agrees to be bound by the terms,
covenants, and conditions contained in this Lease. Furthermore, Lessee acknowledges
and understands that this Lease is not binding on the City until properly authorized by
the City's City Council and executed by the City Manager. By agreement of the parties,
any ambiguities in this Lease are not to be construed against the drafter.
Section 40. Severability.
(A) If, for any reason, any word, phrase, paragraph, provision, or section of this
Lease or the application of such language to any person or circumstance is, to
any extent, held illegal, invalid, or unenforceable under present or future law
effective during the term of this Lease or by a final judgment of a court of
competent jurisdiction, then the remainder of this Lease, or the application of said
language to persons or circumstances other than those as to which it is held
illegal, invalid, or unenforceable, will not be affected hereby, for it is the definite
intent of the parties to this Lease that every word, phrase, paragraph, provision,
or section of this Lease be given full force and effect for its purpose.
(B) To the extent that any word, phrase, paragraph, provision, or section of this
Lease is held illegal, invalid, or unenforceable under present or future law
effective during the term of this Lease or by a final judgment of a court of
competent jurisdiction and in lieu of each such illegal, invalid, or unenforceable
language, a word, phrase, paragraph, provision, or section, as similar in terms to
such illegal, invalid, or unenforceable language as may be possible and be legal,
valid, and enforceable, will be added to this Lease automatically.
Section 41. Coast Guard Status of Permanently Moored Vessel. By May 31, 2010
and every two years thereafter, Lessee must provide evidence of current Coast Guard
18
status as permanently moored vessel, and provide copy of marine survey by certified
marine surveyor and provide copy of fire marshal inspection within past year.
Section 42. Entire Agreement. This Lease document and the incorporated and
attached exhibits constitute the entire agreement between the City and Lessee for the
purpose granted. All other agreements, promises, representations, and
understandings, oral or otherwise, with reference to the subject matter hereof, unless
contained in this Lease, are expressly revoked, as it is the intention of the parties to
provide for a complete understanding within the provisions of this Lease and its exhibits
of the terms, conditions, promises, and covenants relating to Lessee operations and the
Premises to be used in the operations.
EXE UTED IN DUPLICATE, each of which shall be considered an original, on this the
day of ~~~~ , 2009.
ATTEST:
Armando Chapa
City Secretary
APPROVED AS TO LEGAL FORM:
CITY OF CORPUS CHRISTI
A el .Escobar
C Manager
~-, l ~o
~,y.7 1~
Bey ~+~~,°~ c. +y ~-~-b~~,.~
LESSEE:
~~
By:
Name: S~e~~r 4. • s~~.Q:w~~..,~
Title: V :~,Q ~,.e~.~~ew~
Date: ~~ 136/a~o~l
2009.
~~=~-- AUTNORIZE~
~~~~1~,.~~~.g~
s~c~~raar ,~
Q''~_
19
STATE OF TEXAS §
COUNTY OF C~ §
This instrument was acknowledged before me on the `~' day of~Q.uA2 ,
2009, by ~~-~.ui.L• ~~~~~A~.. , ~~ of ~ t' S ~ , on behalf of
Notary Public, State of Texas
Printed Name
Commission expires:
~itr~°Y "~;: VALERIE WILLIAMS
''. •*` MY COMMISSION EXPIRES
=`~~ ~` October 14, 2010
~~~rF~4i o"'~`
20
Incorporated by reference:
Exhibit A: Overview of Proposed Restaurant Site
Exhibit B: Detailed View of Proposed Restaurant Site
Exhibit C: Hurricane Preparedness
Exhibit D: Insurance Requirements for Restaurant Operation
Exhibit E: INSURANCE REQUIREMENTS FOR OPERATION OF GOLF CART SHUTTLE
Exhibit F: IMPROVEMENTS/ADDITIONS/ALTERATIONS
Exhibit G: Request for Proposal No: BI-0132-09
Exhibit H: Proposer's Proposal